At the Harvard Law Review Blog, Elias Neibart: Originalism Makes Sense: A Response (responding to A Thought Experiment: Does Originalism Make Sense? by
A colleague of mine, In Kyu Chung, recently wrote a Blog post titled “A Thought Experiment: Does Originalism Make Sense?” He answers that question in the negative. My task here, then, is a modest one. Given the scope of this Blog post, I won’t be broaching several important topics, like whether we should be originalists in the first place or which flavor of originalist theory we should adopt. All I’ll try to do is demonstrate that originalism does make sense.
Consider a variation on Professor Gary Lawson’s thought experiment: You come across a decades-old employee manual at your job. Among the tasks listed is an instruction to mail out a message. Reading the manual today, you recognize that the “document [was] created at a particular moment in space and time” and that it was meant to “speak to an audience at the time of [its] creation and draw [its] meaning from that point.” That is, you recognize its meaning is its “original public meaning.” In turn, you ascertain that what the manual meant is that the message should be mailed through the postal service.
As Lawson bluntly puts it: “[i]nterpreting the Constitution is no more difficult, and no different in principle” than this kind of everyday interpretation. We mine old documents for meaning all the time. Doing so for the Constitution isn’t a novel proposition; it is an already intuitive exercise.
That is not to say determining the original meaning of the Constitution is simple. Our Constitution is only a “great outline[].” It can often — although not invariably — be generally worded or unclear. So, when we try to comprehend it, our ultimate understanding may likewise be unclear. But even in those instances, we are all unclear about the same thing — the original meaning of the text.
Importantly, the mere fact that investigations into original meaning don’t always yield clearcut answers isn’t a knock against originalism. It’s a knock against any theory of interpretation. Chung’s critique, then, casts too wide of a net. As Professor H.L.A Hart recognized, lawmakers are “handicap[ped]” by their “relative ignorance of fact” and by their “relative indeterminacy of aim.” So, they frame “general rule[s] of conduct.” Any interpretive theory, then, is forced to confront rules framed at a high level of generality. That makes interpreting law hard. But we shouldn’t hold originalism to a higher standard than its interpretive counterparts.
Still, even when we confront a general rule, Hart notes that there are “certain clear examples of what is certainly within its scope.” In other words, sometimes interpreting law leads to murky answers, but other times, it doesn’t. As a theory of interpretation, the same is true for originalism.
Agreed. Also I agree with the post's later discussion of the "construction zone." The two issues are related, in my view. When originalism yields an indeterminate result (which it may often do), the appropriate judicial response is to leave the matter to the political branches. The judiciary's power to intervene against the political branches rests on the Constitution's commands. Where those commands cannot be determined, there is no judicial authority to act. (But at the same time I think, as the post also notes, that originalism's indeterminacy is often overstated.)
(This is from last month but I missed it when it was first posted. And in general, the Harvard Law Review Blog, a relatively new enterprise at least in its current version, is putting up some excellent content.)
Posted at 6:00 AM